CHAPTER 3. MARITAL PROPERTY RIGHTS AND LIABILITIES
FAMILY CODE
TITLE 1. THE MARRIAGE RELATIONSHIP
SUBTITLE B. PROPERTY RIGHTS AND LIABILITIES
CHAPTER 3. MARITAL PROPERTY RIGHTS AND LIABILITIES
SUBCHAPTER A. GENERAL RULES FOR SEPARATE AND COMMUNITY PROPERTY
Sec. 3.001. SEPARATE PROPERTY. A spouse's separate property
consists of:
(1) the property owned or claimed by the spouse before marriage;
(2) the property acquired by the spouse during marriage by gift,
devise, or descent; and
(3) the recovery for personal injuries sustained by the spouse
during marriage, except any recovery for loss of earning capacity
during marriage.
Added by Acts 1997, 75th Leg., ch. 7, Sec. 1, eff. April 17,
1997.
Sec. 3.002. COMMUNITY PROPERTY. Community property consists of
the property, other than separate property, acquired by either
spouse during marriage.
Added by Acts 1997, 75th Leg., ch. 7, Sec. 1, eff. April 17,
1997.
Sec. 3.003. PRESUMPTION OF COMMUNITY PROPERTY. (a) Property
possessed by either spouse during or on dissolution of marriage
is presumed to be community property.
(b) The degree of proof necessary to establish that property is
separate property is clear and convincing evidence.
Added by Acts 1997, 75th Leg., ch. 7, Sec. 1, eff. April 17,
1997.
Sec. 3.004. RECORDATION OF SEPARATE PROPERTY. (a) A subscribed
and acknowledged schedule of a spouse's separate property may be
recorded in the deed records of the county in which the parties,
or one of them, reside and in the county or counties in which the
real property is located.
(b) A schedule of a spouse's separate real property is not
constructive notice to a good faith purchaser for value or a
creditor without actual notice unless the instrument is
acknowledged and recorded in the deed records of the county in
which the real property is located.
Added by Acts 1997, 75th Leg., ch. 7, Sec. 1, eff. April 17,
1997.
Sec. 3.005. GIFTS BETWEEN SPOUSES. If one spouse makes a gift
of property to the other spouse, the gift is presumed to include
all the income and property that may arise from that property.
Added by Acts 1997, 75th Leg., ch. 7, Sec. 1, eff. April 17,
1997.
Sec. 3.006. PROPORTIONAL OWNERSHIP OF PROPERTY BY MARITAL
ESTATES. If the community estate of the spouses and the separate
estate of a spouse have an ownership interest in property, the
respective ownership interests of the marital estates are
determined by the rule of inception of title.
Added by Acts 1999, 76th Leg., ch. 692, Sec. 1, eff. Sept. 1,
1999. Amended by Acts 2001, 77th Leg., ch. 838, Sec. 3, eff.
Sept. 1, 2001.
Sec. 3.007. PROPERTY INTEREST IN CERTAIN EMPLOYEE BENEFITS. (a)
Repealed by Acts 2009, 81st Leg., R.S., Ch. 768, Sec. 11(1),
eff. September 1, 2009.
(b) Repealed by Acts 2009, 81st Leg., R.S., Ch. 768, Sec. 11(1),
eff. September 1, 2009.
(c) The separate property interest of a spouse in a defined
contribution retirement plan may be traced using the tracing and
characterization principles that apply to a nonretirement asset.
(d) A spouse who is a participant in an employer-provided stock
option plan or an employer-provided restricted stock plan has a
separate property interest in the options or restricted stock
granted to the spouse under the plan as follows:
(1) if the option or stock was granted to the spouse before
marriage but required continued employment during marriage before
the grant could be exercised or the restriction removed, the
spouse's separate property interest is equal to the fraction of
the option or restricted stock in which:
(A) the numerator is the sum of:
(i) the period from the date the option or stock was granted
until the date of marriage; and
(ii) if the option or stock also required continued employment
following the date of dissolution of the marriage before the
grant could be exercised or the restriction removed, the period
from the date of dissolution of the marriage until the date the
grant could be exercised or the restriction removed; and
(B) the denominator is the period from the date the option or
stock was granted until the date the grant could be exercised or
the restriction removed; and
(2) if the option or stock was granted to the spouse during the
marriage but required continued employment following the date of
dissolution of the marriage before the grant could be exercised
or the restriction removed, the spouse's separate property
interest is equal to the fraction of the option or restricted
stock in which:
(A) the numerator is the period from the date of dissolution of
the marriage until the date the grant could be exercised or the
restriction removed; and
(B) the denominator is the period from the date the option or
stock was granted until the date the grant could be exercised or
the restriction removed.
(e) The computation described by Subsection (d) applies to each
component of the benefit requiring varying periods of employment
before the grant could be exercised or the restriction removed.
(f) Repealed by Acts 2009, 81st Leg., R.S., Ch. 768, Sec. 11(1),
eff. September 1, 2009.
Added by Acts 2005, 79th Leg., Ch.
490, Sec. 1, eff. September 1, 2005.
Amended by:
Acts 2009, 81st Leg., R.S., Ch.
768, Sec. 1, eff. September 1, 2009.
Acts 2009, 81st Leg., R.S., Ch.
768, Sec. 11(1), eff. September 1, 2009.
Sec. 3.008. PROPERTY INTEREST IN CERTAIN INSURANCE PROCEEDS.
(a) Insurance proceeds paid or payable that arise from a
casualty loss to property during marriage are characterized in
the same manner as the property to which the claim is
attributable.
(b) If a person becomes disabled or is injured, any disability
insurance payment or workers' compensation payment is community
property to the extent it is intended to replace earnings lost
while the disabled or injured person is married. To the extent
that any insurance payment or workers' compensation payment is
intended to replace earnings while the disabled or injured person
is not married, the recovery is the separate property of the
disabled or injured spouse.
Added by Acts 2005, 79th Leg., Ch.
490, Sec. 1, eff. September 1, 2005.
SUBCHAPTER B. MANAGEMENT, CONTROL, AND DISPOSITION OF MARITAL
PROPERTY
Sec. 3.101. MANAGING SEPARATE PROPERTY. Each spouse has the
sole management, control, and disposition of that spouse's
separate property.
Added by Acts 1997, 75th Leg., ch. 7, Sec. 1, eff. April 17,
1997.
Sec. 3.102. MANAGING COMMUNITY PROPERTY. (a) During marriage,
each spouse has the sole management, control, and disposition of
the community property that the spouse would have owned if
single, including:
(1) personal earnings;
(2) revenue from separate property;
(3) recoveries for personal injuries; and
(4) the increase and mutations of, and the revenue from, all
property subject to the spouse's sole management, control, and
disposition.
(b) If community property subject to the sole management,
control, and disposition of one spouse is mixed or combined with
community property subject to the sole management, control, and
disposition of the other spouse, then the mixed or combined
community property is subject to the joint management, control,
and disposition of the spouses, unless the spouses provide
otherwise by power of attorney in writing or other agreement.
(c) Except as provided by Subsection (a), community property is
subject to the joint management, control, and disposition of the
spouses unless the spouses provide otherwise by power of attorney
in writing or other agreement.
Added by Acts 1997, 75th Leg., ch. 7, Sec. 1, eff. April 17,
1997.
Sec. 3.103. MANAGING EARNINGS OF MINOR. Except as provided by
Section 264.0111, during the marriage of the parents of an
unemancipated minor for whom a managing conservator has not been
appointed, the earnings of the minor are subject to the joint
management, control, and disposition of the parents of the minor,
unless otherwise provided by agreement of the parents or by
judicial order.
Added by Acts 1997, 75th Leg., ch. 7, Sec. 1, eff. April 17,
1997. Amended by Acts 2001, 77th Leg., ch. 964, Sec. 1, eff.
Sept. 1, 2001.
Sec. 3.104. PROTECTION OF THIRD PERSONS. (a) During marriage,
property is presumed to be subject to the sole management,
control, and disposition of a spouse if it is held in that
spouse's name, as shown by muniment, contract, deposit of funds,
or other evidence of ownership, or if it is in that spouse's
possession and is not subject to such evidence of ownership.
(b) A third person dealing with a spouse is entitled to rely, as
against the other spouse or anyone claiming from that spouse, on
that spouse's authority to deal with the property if:
(1) the property is presumed to be subject to the sole
management, control, and disposition of the spouse; and
(2) the person dealing with the spouse:
(A) is not a party to a fraud on the other spouse or another
person; and
(B) does not have actual or constructive notice of the spouse's
lack of authority.
Added by Acts 1997, 75th Leg., ch. 7, Sec. 1, eff. April 17,
1997.
SUBCHAPTER C. MARITAL PROPERTY LIABILITIES
Sec. 3.201. SPOUSAL LIABILITY. (a) A person is personally
liable for the acts of the person's spouse only if:
(1) the spouse acts as an agent for the person; or
(2) the spouse incurs a debt for necessaries as provided by
Subchapter F, Chapter 2.
(b) Except as provided by this subchapter, community property is
not subject to a liability that arises from an act of a spouse.
(c) A spouse does not act as an agent for the other spouse
solely because of the marriage relationship.
Added by Acts 1997, 75th Leg., ch. 7, Sec. 1, eff. April 17,
1997.
Sec. 3.202. RULES OF MARITAL PROPERTY LIABILITY. (a) A
spouse's separate property is not subject to liabilities of the
other spouse unless both spouses are liable by other rules of
law.
(b) Unless both spouses are personally liable as provided by
this subchapter, the community property subject to a spouse's
sole management, control, and disposition is not subject to:
(1) any liabilities that the other spouse incurred before
marriage; or
(2) any nontortious liabilities that the other spouse incurs
during marriage.
(c) The community property subject to a spouse's sole or joint
management, control, and disposition is subject to the
liabilities incurred by the spouse before or during marriage.
(d) All community property is subject to tortious liability of
either spouse incurred during marriage.
(e) For purposes of this section, all retirement allowances,
annuities, accumulated contributions, optional benefits, and
money in the various public retirement system accounts of this
state that are community property subject to the participating
spouse's sole management, control, and disposition are not
subject to any claim for payment of a criminal restitution
judgment entered against the nonparticipant spouse except to the
extent of the nonparticipant spouse's interest as determined in a
qualified domestic relations order under Chapter 804, Government
Code.
Added by Acts 1997, 75th Leg., ch. 7, Sec. 1, eff. April 17,
1997.
Amended by:
Acts 2009, 81st Leg., R.S., Ch.
1244, Sec. 1, eff. September 1, 2009.
Sec. 3.203. ORDER IN WHICH PROPERTY IS SUBJECT TO EXECUTION.
(a) A judge may determine, as deemed just and equitable, the
order in which particular separate or community property is
subject to execution and sale to satisfy a judgment, if the
property subject to liability for a judgment includes any
combination of:
(1) a spouse's separate property;
(2) community property subject to a spouse's sole management,
control, and disposition;
(3) community property subject to the other spouse's sole
management, control, and disposition; and
(4) community property subject to the spouses' joint management,
control, and disposition.
(b) In determining the order in which particular property is
subject to execution and sale, the judge shall consider the facts
surrounding the transaction or occurrence on which the suit is
based.
Added by Acts 1997, 75th Leg., ch. 7, Sec. 1, eff. April 17,
1997.
SUBCHAPTER D. MANAGEMENT, CONTROL, AND DISPOSITION OF MARITAL
PROPERTY UNDER UNUSUAL CIRCUMSTANCES
Sec. 3.301. MISSING, ABANDONED, OR SEPARATED SPOUSE. (a) A
spouse may file a sworn petition stating the facts that make it
desirable for the petitioning spouse to manage, control, and
dispose of community property described or defined in the
petition that would otherwise be subject to the sole or joint
management, control, and disposition of the other spouse if:
(1) the other spouse has disappeared and that spouse's location
remains unknown to the petitioning spouse, unless the spouse is
reported to be a prisoner of war or missing on public service;
(2) the other spouse has permanently abandoned the petitioning
spouse; or
(3) the spouses are permanently separated.
(b) The petition may be filed in a court in the county in which
the petitioner resided at the time the separation began, or the
abandonment or disappearance occurred, not earlier than the 60th
day after the date of the occurrence of the event. If both
spouses are nonresidents of this state at the time the petition
is filed, the petition may be filed in a court in a county in
which any part of the described or defined community property is
located.
Added by Acts 1997, 75th Leg., ch. 7, Sec. 1, eff. April 17,
1997. Amended by Acts 2001, 77th Leg., ch. 217, Sec. 23, eff.
Sept. 1, 2001.
Sec. 3.302. SPOUSE MISSING ON PUBLIC SERVICE. (a) If a spouse
is reported by an executive department of the United States to be
a prisoner of war or missing on the public service of the United
States, the spouse of the prisoner of war or missing person may
file a sworn petition stating the facts that make it desirable
for the petitioner to manage, control, and dispose of the
community property described or defined in the petition that
would otherwise be subject to the sole or joint management,
control, and disposition of the imprisoned or missing spouse.
(b) The petition may be filed in a court in the county in which
the petitioner resided at the time the report was made not
earlier than six months after the date of the notice that a
spouse is reported to be a prisoner of war or missing on public
service. If both spouses were nonresidents of this state at the
time the report was made, the petition shall be filed in a court
in a county in which any part of the described or defined
property is located.
Added by Acts 1997, 75th Leg., ch. 7, Sec. 1, eff. April 17,
1997.
Sec. 3.303. APPOINTMENT OF ATTORNEY. (a) Except as provided by
Subsection (b), the court may appoint an attorney in a suit filed
under this subchapter for the respondent.
(b) The court shall appoint an attorney in a suit filed under
this subchapter for a respondent reported to be a prisoner of war
or missing on public service.
(c) The court shall allow a reasonable fee for an appointed
attorney's services as a part of the costs of the suit.
Added by Acts 1997, 75th Leg., ch. 7, Sec. 1, eff. April 17,
1997.
Sec. 3.304. NOTICE OF HEARING; CITATION. (a) Notice of the
hearing, accompanied by a copy of the petition, shall be issued
and served on the attorney representing the respondent, if an
attorney has been appointed.
(b) If an attorney has not been appointed for the respondent,
citation shall be issued and served on the respondent as in other
civil cases.
Added by Acts 1997, 75th Leg., ch. 7, Sec. 1, eff. April 17,
1997.
Sec. 3.305. CITATION BY PUBLICATION. (a) If the residence of
the respondent, other than a respondent reported to be a prisoner
of war or missing on public service, is unknown, citation shall
be published in a newspaper of general circulation published in
the county in which the petition was filed. If that county has no
newspaper of general circulation, citation shall be published in
a newspaper of general circulation in an adjacent county or in
the nearest county in which a newspaper of general circulation is
published.
(b) The notice shall be published once a week for two
consecutive weeks before the hearing, but the first notice may
not be published after the 20th day before the date set for the
hearing.
Added by Acts 1997, 75th Leg., ch. 7, Sec. 1, eff. April 17,
1997.
Sec. 3.306. COURT ORDER FOR MANAGEMENT, CONTROL, AND DISPOSITION
OF COMMUNITY PROPERTY. (a) After hearing the evidence in a suit
under this subchapter, the court, on terms the court considers
just and equitable, shall render an order describing or defining
the community property at issue that will be subject to the
management, control, and disposition of each spouse during
marriage.
(b) The court may:
(1) impose any condition and restriction the court deems
necessary to protect the rights of the respondent;
(2) require a bond conditioned on the faithful administration of
the property; and
(3) require payment to the registry of the court of all or a
portion of the proceeds of the sale of the property, to be
disbursed in accordance with the court's further directions.
Added by Acts 1997, 75th Leg., ch. 7, Sec. 1, eff. April 17,
1997.
Sec. 3.307. CONTINUING JURISDICTION OF COURT; VACATING ORIGINAL
ORDER. (a) The court has continuing jurisdiction over the
court's order rendered under this subchapter.
(b) On the motion of either spouse, the court shall amend or
vacate the original order after notice and hearing if:
(1) the spouse who disappeared reappears;
(2) the abandonment or permanent separation ends; or
(3) the spouse who was reported to be a prisoner of war or
missing on public service returns.
Added by Acts 1997, 75th Leg., ch. 7, Sec. 1, eff. April 17,
1997. Amended by Acts 2001, 77th Leg., ch. 217, Sec. 24, eff.
Sept. 1, 2001.
Sec. 3.308. RECORDING ORDER TO AFFECT REAL PROPERTY. An order
authorized by this subchapter affecting real property is not
constructive notice to a good faith purchaser for value or to a
creditor without actual notice unless the order is recorded in
the deed records of the county in which the real property is
located.
Added by Acts 1997, 75th Leg., ch. 7, Sec. 1, eff. April 17,
1997.
Sec. 3.309. REMEDIES CUMULATIVE. The remedies provided in this
subchapter are cumulative of other rights, powers, and remedies
afforded spouses by law.
Added by Acts 1997, 75th Leg., ch. 7, Sec. 1, eff. April 17,
1997.
SUBCHAPTER E. CLAIMS FOR REIMBURSEMENT
Sec. 3.401. DEFINITIONS. In this subchapter:
(1) Repealed by Acts 2009, 81st Leg., R.S., Ch. 768, Sec. 11(2),
eff. September 1, 2009.
(2) Repealed by Acts 2009, 81st Leg., R.S., Ch. 768, Sec. 11(2),
eff. September 1, 2009.
(3) Repealed by Acts 2009, 81st Leg., R.S., Ch. 768, Sec. 11(2),
eff. September 1, 2009.
(4) "Marital estate" means one of three estates:
(A) the community property owned by the spouses together and
referred to as the community marital estate;
(B) the separate property owned individually by the husband and
referred to as a separate marital estate; or
(C) the separate property owned individually by the wife, also
referred to as a separate marital estate.
(5) "Spouse" means a husband, who is a man, or a wife, who is a
woman. A member of a civil union or similar relationship entered
into in another state between persons of the same sex is not a
spouse.
Added by Acts 1999, 76th Leg., ch. 692, Sec. 2, eff. Sept. 1,
1999. Amended by Acts 2001, 77th Leg., ch. 838, Sec. 2, eff.
Sept. 1, 2001.
Amended by:
Acts 2009, 81st Leg., R.S., Ch.
768, Sec. 11(2), eff. September 1, 2009.
Sec. 3.402. CLAIM FOR REIMBURSEMENT; OFFSETS. (a) For purposes
of this subchapter, a claim for reimbursement includes:
(1) payment by one marital estate of the unsecured liabilities
of another marital estate;
(2) inadequate compensation for the time, toil, talent, and
effort of a spouse by a business entity under the control and
direction of that spouse;
(3) the reduction of the principal amount of a debt secured by
a lien on property owned before marriage, to the extent the debt
existed at the time of marriage;
(4) the reduction of the principal amount of a debt secured by a
lien on property received by a spouse by gift, devise, or descent
during a marriage, to the extent the debt existed at the time the
property was received;
(5) the reduction of the principal amount of that part of a
debt, including a home equity loan:
(A) incurred during a marriage;
(B) secured by a lien on property; and
(C) incurred for the acquisition of, or for capital improvements
to, property;
(6) the reduction of the principal amount of that part of a
debt:
(A) incurred during a marriage;
(B) secured by a lien on property owned by a spouse;
(C) for which the creditor agreed to look for repayment solely
to the separate marital estate of the spouse on whose property
the lien attached; and
(D) incurred for the acquisition of, or for capital improvements
to, property;
(7) the refinancing of the principal amount described by
Subdivisions (3)-(6), to the extent the refinancing reduces that
principal amount in a manner described by the applicable
subdivision;
(8) capital improvements to property other than by incurring
debt; and
(9) the reduction by the community property estate of an
unsecured debt incurred by the separate estate of one of the
spouses.
(b) The court shall resolve a claim for reimbursement by using
equitable principles, including the principle that claims for
reimbursement may be offset against each other if the court
determines it to be appropriate.
(c) Benefits for the use and enjoyment of property may be offset
against a claim for reimbursement for expenditures to benefit a
marital estate, except that the separate estate of a spouse may
not claim an offset for use and enjoyment of a primary or
secondary residence owned wholly or partly by the separate estate
against contributions made by the community estate to the
separate estate.
(d) Reimbursement for funds expended by a marital estate for
improvements to another marital estate shall be measured by the
enhancement in value to the benefited marital estate.
(e) The party seeking an offset to a claim for reimbursement has
the burden of proof with respect to the offset.
Added by Acts 1999, 76th Leg., ch. 692, Sec. 2, eff. Sept. 1,
1999. Amended by Acts 2001, 77th Leg., ch. 838, Sec. 2, eff.
Sept. 1, 2001.
Amended by:
Acts 2009, 81st Leg., R.S., Ch.
768, Sec. 3, eff. September 1, 2009.
Sec. 3.404. APPLICATION OF INCEPTION OF TITLE RULE; OWNERSHIP
INTEREST NOT CREATED. (a) This subchapter does not affect the
rule of inception of title under which the character of property
is determined at the time the right to own or claim the property
arises.
(b) A claim for reimbursement under this subchapter does not
create an ownership interest in property, but does create a claim
against the property of the benefited estate by the contributing
estate. The claim matures on dissolution of the marriage or the
death of either spouse.
Added by Acts 1999, 76th Leg., ch. 692, Sec. 2, eff. Sept. 1,
1999. Amended by Acts 2001, 77th Leg., ch. 838, Sec. 2, eff.
Sept. 1, 2001.
Amended by:
Acts 2009, 81st Leg., R.S., Ch.
768, Sec. 4, eff. September 1, 2009.
Sec. 3.405. MANAGEMENT RIGHTS. This subchapter does not affect
the right to manage, control, or dispose of marital property as
provided by this chapter.
Added by Acts 1999, 76th Leg., ch. 692, Sec. 2, eff. Sept. 1,
1999. Amended by Acts 2001, 77th Leg., ch. 838, Sec. 2, eff.
Sept. 1, 2001.
Sec. 3.406. EQUITABLE LIEN. (a) On dissolution of a marriage,
the court may impose an equitable lien on the property of a
benefited marital estate to secure a claim for reimbursement
against that property by a contributing marital estate.
(b) On the death of a spouse, a court may, on application for a
claim for reimbursement brought by the surviving spouse, the
personal representative of the estate of the deceased spouse, or
any other person interested in the estate, as defined by Section
3, Texas Probate Code, impose an equitable lien on the property
of a benefited marital estate to secure a claim for reimbursement
against that property by a contributing marital estate.
(c) Repealed by Acts 2009, 81st Leg., R.S., Ch. 768, Sec. 11(4),
eff. September 1, 2009.
Added by Acts 1999, 76th Leg., ch. 692, Sec. 2, eff. Sept. 1,
1999. Amended by Acts 2001, 77th Leg., ch. 838, Sec. 2, eff.
Sept. 1, 2001.
Amended by:
Acts 2009, 81st Leg., R.S., Ch.
768, Sec. 5, eff. September 1, 2009.
Acts 2009, 81st Leg., R.S., Ch.
768, Sec. 11(4), eff. September 1, 2009.
Sec. 3.409. NONREIMBURSABLE CLAIMS. The court may not recognize
a marital estate's claim for reimbursement for:
(1) the payment of child support, alimony, or spousal
maintenance;
(2) the living expenses of a spouse or child of a spouse;
(3) contributions of property of a nominal value;
(4) the payment of a liability of a nominal amount; or
(5) a student loan owed by a spouse.
Added by Acts 2001, 77th Leg., ch. 838, Sec. 2, eff. Sept. 1,
2001.
Sec. 3.410. EFFECT OF MARITAL PROPERTY AGREEMENTS. A premarital
or marital property agreement, whether executed before, on, or
after September 1, 2009, that satisfies the requirements of
Chapter 4 is effective to waive, release, assign, or partition a
claim for economic contribution, reimbursement, or both, under
this subchapter to the same extent the agreement would have been
effective to waive, release, assign, or partition a claim for
economic contribution, reimbursement, or both under the law as it
existed immediately before September 1, 2009, unless the
agreement provides otherwise.
Added by Acts 2001, 77th Leg., ch. 838, Sec. 2, eff. Sept. 1,
2001.
Amended by:
Acts 2009, 81st Leg., R.S., Ch.
768, Sec. 6, eff. September 1, 2009.